B-206133 L/M, MAY 21, 1982, OFFICE OF GENERAL COUNSEL

B-206133 L/M, MAY 21, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: 1. FORMER OFFICER IN THE MARINE CORPS RESERVE, WHO WOULD HAVE BEEN ENTITLED TO READJUSTMENT PAY BUT FOR HIS ELIGIBILITY FOR RETIRED PAY BASED ON A TEMPORARY DISABILITY, IS NOT ELIGIBLE FOR READJUSTMENT PAY FOLLOWING HIS REMOVAL FROM THE TEMPORARY DISABILITY RETIRED LIST AND REAPPOINTMENT UNLESS HE FULFILLS ANEW THE REQUIREMENTS OF 10 U.S.C. SEC. 687. 2. FORMER OFFICER IN THE MARINE CORPS RESERVE HAD SERVED 5 YEARS IN CONTINUOUS ACTIVE DUTY AND VOLUNTEERED BUT WAS NOT ACCEPTED FOR EITHER AUGMENTATION INTO THE REGULAR MARINE CORPS OR AN ADDITIONAL TOUR OF ACTIVE DUTY. PRIOR TO THE DATE HE WAS TO BE RELEASED FROM ACTIVE DUTY, THE OFFICER WAS FOUND TO BE UNQUALIFIED FOR SEPARATION DUE TO A MEDICAL CONDITION. HE WAS LATER RELEASED FROM ACTIVE DUTY AND IMMEDIATELY TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST. EVEN THOUGH HIS DISABILITY WAS CHARACTERIZED AS TEMPORARY, HE WAS RETIRED DURING THE PERIOD OF HIS DISABILITY AND, THUS, ELIGIBLE FOR RETIRED PAY. THEREFORE, HE IS NOT ELIGIBLE FOR READJUSTMENT PAY. 10 U.S.C. SEC. 687(B)(4).

MAJOR B. DUFF, USMC, MARINE CORPS FINANCE CENTER:

THIS CONCERNS YOUR REQUEST OF DECEMBER 7, 1981, FOR AN ADVANCE DECISION CONCERNING THE ENTITLEMENT OF CAPTAIN JOHN B. TURPIT, USMC CONTROL NUMBER DO-MC-1383 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND CONTROL NUMBER DO -MC-1383 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD SHOWS THAT CAPTAIN TURPIT WAS ORDERED TO ACTIVE DUTY ON JANUARY 9, 1969. HIS EXPIRATION OF ACTIVE SERVICE DATE WAS APRIL 15, 1974. FOLLOWING NOTIFICATION OF THE ORDERS OF THE COMMANDANT OF THE MARINE CORPS FOR HIS RELEASE FROM ACTIVE DUTY AS SCHEDULED AND OF HIS ELIGIBILITY FOR READJUSTMENT PAY, HE REQUESTED AUGMENTATION INTO THE REGULAR MARINE CORPS OR RETENTION ON ACTIVE DUTY AS A RESERVE OFFICER. BOTH OF HIS REQUESTS WERE DENIED BY THE COMMANDANT OF THE MARINE CORPS ON FEBRUARY 4, 1974.

HOWEVER, PRIOR TO HIS SCHEDULED RELEASE FROM ACTIVE DUTY, IT WAS DETERMINED THAT HE WAS NOT QUALIFIED FOR RELEASE DUE TO A MEDICAL CONDITION. CONSEQUENTLY, THE ORDERS FOR HIS RELEASE FROM ACTIVE DUTY ON APRIL 15, 1974, WERE REVOKED AND HE WAS ORDERED RETAINED ON ACTIVE DUTY AT THE CONVENIENCE OF THE GOVERNMENT, PENDING DETERMINATION OF HIS MEDICAL CONDITION.

UPON THE DETERMINATION OF THE SECRETARY OF THE NAVY THAT HE WAS PHYSICALLY UNABLE TO PERFORM THE DUTIES OF HIS GRADE, HE WAS RELEASED FROM ACTIVE DUTY ON AUGUST 31, 1974, AND TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST AT A 30 PERCENT DISABILITY RATE, IN ACCORDANCE WITH THE RATING SCHEDULES OF THE VETERANS ADMINISTRATION.

ON JANUARY 27, 1977, CAPTAIN TURPIT WAS FOUND FIT FOR DUTY. THEREAFTER, HE WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND REAPPOINTED IN THE MARINE CORPS ON APRIL 7, 1977. FOLLOWING HIS REAPPOINTMENT, HE AGAIN REQUESTED AUGMENTATION INTO THE REGULAR MARINE CORPS OR ANOTHER TOUR OF ACTIVE DUTY. AGAIN HIS REQUESTS WERE DENIED. ON JUNE 1, 1980, HE WAS TRANSFERRED TO THE RETIRED RESERVE LIST WITHOUT PAY AND ALLOWANCES.

BECAUSE OF THE ERRONEOUS CONTINUATION OF RETIRED PAY, CAPTAIN TURPIT WAS LATER DETERMINED TO BE INDEBTED TO THE GOVERNMENT FOR THE TOTAL AMOUNT OF THE RETIREMENT PAYMENTS HE RECEIVED FROM APRIL 7 THROUGH AUGUST 30, 1977, AFTER WHICH THE ERROR WAS DISCOVERED. HIS APPLICATION FOR WAIVER OF THE DEBT AND REQUEST FOR READJUSTMENT PAY WERE RECEIVED BY THE GENERAL ACCOUNTING OFFICE ON MAY 31, 1978. BY LETTER DATED AUGUST 9, 1979, OUR CLAIMS GROUP DENIED WAIVER OF HIS DEBT; HIS ENTITLEMENT TO READJUSTMENT PAY WAS NOT CONSIDERED.

THE RECORD FURTHER SHOWS THAT ON JUNE 27, 1980, CAPTAIN TURPIT AGAIN REQUESTED PAYMENT OF READJUSTMENT PAY BY LETTER FROM HIS ATTORNEY ADDRESSED TO THE COMMANDANT OF THE MARINE CORPS.

YOUR INQUIRIES CONCERNING THIS MATTER WERE RECEIVED IN THIS OFFICE IN JANUARY 1982 AND THE CASE HAS BEEN IN PROCESS SINCE FEBRUARY. YOU WERE APPRISED OF ITS STATUS ON APRIL 19, 1982. WE HAVE NOW BEEN INFORMED BY THE DEPARTMENT OF JUSTICE THAT ON MARCH 31, 1982, CAPTAIN TURPIT, THROUGH HIS ATTORNEY, FILED A PETITION IN THE UNITED STATES COURT OF CLAIMS SEEKING PAYMENT OF READJUSTMENT PAY AS PREVIOUSLY CLAIMED IN YOUR SUBMISSION TO THIS OFFICE.

IT IS THE POLICY OF THIS OFFICE TO DECLINE RULING ON MATTERS THAT ARE IN THE COURTS DURING PENDENCY OF LITIGATION. SINCE THE EVENTUAL RESULTS OF THE LITIGATION MAY FULLY RESOLVE THE QUESTIONS PRESENTED IN YOUR SUBMISSION, WE DECLINE TO PROCEED FURTHER WITH OUR CONSIDERATION OF THESE MATTERS AT THIS TIME. MATTER OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 542, 58 COMP.GEN. 282, 286 (1979), AND MATTER OF MORRIS MECHANICAL ENTERPRISES, INC., B-200552, MARCH 16, 1982. IF THE MATTER IS NOT FULLY RESOLVED BY THE COURT'S ACTION IN THIS CASE, IT MAY BE RESUBMITTED TO THIS OFFICE FOR FURTHER CONSIDERATION.